Judgment

H.K. SEMA, J.- This appeal is against an order of the High Court of Karnataka dated 8-2-2000.

2. On 4-3-1996 there was an accident between two vehicles in which a person by name Arun Raikar was killed. He was working with the International Airport Authority of India. The appellants filed a claim before the Motor Accidents Claims Tribunal. The Motor Accidents Claims Tribunal awarded a sum of Rs 10,67,076. The Claims Tribunal held that there was contributory negligence and, therefore, directed that the amount be paid in equal proportion by the owners and insurer of both the vehicles.

3. The respondent (herein) along with the owner of the tempo (one of the vehicles) filed an appeal before the High Court. The High Court, by the impugned judgment, reduced the amount of compensation payable to Rs 8,79,176. The High Court has done this on the basis of a salary certificate which reads as follows:

"This is to certify that Mr A.M. Raikar, working as AG III in this organisation has been paid the following pay and allowances for the month of May 1995:

Earnings Amount Deductions Amount

Basic Rs 3420.00 CPF(S) Rs 488.00

Special pay Rs 70.00 CPF (Add) Rs

FDA Rs 350.00 GIS Rs 3.75

VDA Rs 1040.00 LIC/GIS Rs

CCA Rs 100.00 HRR Rs 509.10

HRA Rs 1047.00 MSPI Rs 60.00

Washing all. Rs 75.00 Society Rs 576.00

Conv. Rs 225.00 Union Rs 3.00

Cant. sub. Rs 265.00 HBA Rs 340.00

CEA Rs 2040.00 B. fund Rs 10.00

__________ _____________

Total Rs 8632.00 Total Rs 1989.85

Net payable Rs 6642.00 (Rupees six thousand six hundred and forty-two only).

This salary certificate is for accident compensation court case."

4. It is urged that the Insurance Company could not have filed an appeal on any ground other than that available under Section 149 of the Motor Vehicles Act. It was submitted that a joint appeal was not maintainable. In support of this submission reliance was placed upon National Insurance Co. Ltd. v. Nicolletta Rohtagi1, wherein in para 21 it is stated as follows: (SCC p.469)

"21 In Chinnama George v. N.K. Raju2 it was held that if none of the conditions as contained in sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the a award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it."

5. In Chinnama George an earlier judgment in Narendra Kumar v. Yarenissa was cited wherein it had been held that if an award had been made against the tortfeasor as well as the insurer the appeal could not be dismissed but the tortfeasor could proceed with the appeal after deleting the name of the insurer. In spite of this judgment having been shown to the Court it was observed in para 10, as follows: (SCC p. 136)

"10. There is no dispute with the proposition so laid by this Court. But the insurer cannot maintain a joint appeal along with the owner or the driver if defence on any ground under Section 149(2) is not available to it. In that situation a joint appeal will be incompetent. It is not enough if the insurer is struck out from the array of appellants. The appellate court must also be satisfied that a defence which is permitted to be taken by the insurer under the Act was taken in the pleadings and was pressed before the Tribunal. On the appellate court being so satisfied the appeal may be entertained for examination of the correctness or otherwise of the judgment of the Tr